The Two-Way

10:12 am

Fri March 21, 2014

In Hawaii, Sex With A Prostitute May Be Legal For Undercover Cops

Waikiki Beach in Honolulu. Undercover police in Honolulu say they need to be exempt from laws barring sex with prostitutes because sometimes they can't reveal their identities too soon.

Ronen Zilberman AP

"Honolulu police officers have urged lawmakers to keep an exemption in state law that allows undercover officers to have sex with prostitutes during investigations," the Star Advertiser writes. The issue has come up as the state legislature considers a bill that sponsors say would strengthen several criminal statutes.

The police department's stance: Undercover officers need the exemption related to sexual contact with prostitutes because, in some cases, revealing their identities too soon might ruin their investigations. Honolulu police Maj. Jerry Inouye has told the Hawaii House that the department has procedures in place to prohibit misconduct on the part of its officers — in other words, to hopefully prevent them from such conduct when it doesn't involve their investigations.

And according to Hawaii's KITV, "Honolulu Police say that not being able to have sexual penetration with a suspected prostitute would limit the type of violations its officers could enforce."

Plus, Inouye has testified, not allowing the exemption means that "prostitution suspects, pimps and other people are ... going to know exactly how far the undercover officer can and cannot go."

But critics say the police can do their jobs without the exemption and that it puts prostitutes at risk.

"Police abuse is part of the life of prostitution," Melissa Farley, executive director of a San Francisco-based group called Prostitution Research and Education, tells the Star Advertiser.

The newspaper adds that "Farley said that in places without such police protections, 'women who have escaped prostitution' commonly report being coerced into giving police sexual favors to keep from being arrested or harassed."

Another skeptic, retired FBI special agent Roger Young, tells the Star Advertiser that "I don't know of any state or federal law that allows any law enforcement officer undercover to penetrate or do what this law is allowing." According to the newspaper, Young has "trained vice squads around the country."

The state law that exempts police officers, which has been on the books since 1972, attracted attention in Hawaii earlier this month when legislators were considering a bill to toughen the state's laws on prostitution and some other crimes. The new bill didn't include the exemption for law enforcement officers. That's when the Honolulu police lobbied to have the exemption put in. The measure subsequently passed by the state House included it. A state Senate committee is expected to begin debating the bill today.

The measure, known as HB 1926, is posted here. Its section about "solicitation of a minor for prostitution" spells out the nature of that crime and now states that "this section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties." Note: The section addresses only solicitation of a minor, not sexual relations with someone under the age of 18.

The exemption language is identical to a passage in Hawaii's broader criminal code about prostitution. That law states that "a person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee." Its definition of sexual conduct includes "sexual penetration." The law does not apply to law enforcement officers "acting in the course and scope of duties."

The Associated Press points out that "police haven't said how often — or even if — they use the provision. And when they asked legislators to preserve it, they made assurances that internal policies and procedures are in place to prevent officers from taking advantage of it."

Still, the wire service story adds that:

"Expert Derek Marsh says the exemption is 'antiquated at best' and that police can easily do without it. 'It doesn't help your case, and at worst you further traumatize someone. And do you think he or she is going to trust a cop again?' asked Marsh, who trains California police in best practices on human trafficking cases and twice has testified to Congress about the issue."